United States v. Taylor

• Decision Date: 14 October 2020
• Docket Number: No. 19-7616,19-7616
• Citation: 979 F.3d 203
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Justin Eugene TAYLOR, a/k/a Mookie, a/k/a Mook, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

979 F.3d 203

UNITED STATES of America, Plaintiff – Appellee,

v.Justin Eugene TAYLOR, a/k/a Mookie, a/k/a Mook, Defendant – Appellant.

No. 19-7616

United States Court of Appeals, Fourth Circuit.

Argued: September 10, 2020

Decided: October 14, 2020

Amended: November 4, 2020

ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Laura J. Koenig, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Daniel T. Young, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before MOTZ, KING, and FLOYD, Circuit Judges.

Vacated and remanded by published opinion. Judge Motz wrote the opinion, in which Judge King and Judge Floyd joined.

DIANA GRIBBON MOTZ, Circuit Judge:

In this successive federal habeas petition, Justin Eugene Taylor, convicted of using a firearm in furtherance of a "crime of violence" in violation of 18 U.S.C. § 924(c), asks us to vacate this conviction and remand for resentencing. He contends that this conviction was predicated on two offenses — conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery — that do not constitute "crimes of violence" under § 924(c). The parties agree that conspiracy to commit Hobbs Act robbery no longer qualifies as a valid § 924(c) predicate. The Government contends, however, that attempted Hobbs Act robbery does constitute a crime of violence and so is a valid predicate. The district court so held. Taylor petitioned for a certificate of appealability, which we granted. Because the elements of attempted Hobbs Act robbery do not invariably require "the use, attempted use, or threatened use of physical force," the offense does not qualify as a "crime of violence" under § 924(c).¹ Accordingly, we vacate Taylor's § 924(c) conviction and remand for resentencing consistent with this opinion.

I.

This case arises from a 2003 conspiracy to rob a drug dealer. Taylor arranged a transaction to sell marijuana to Martin Sylvester, who in turn planned to sell marijuana to others. But Taylor had an ulterior plan: rather than complete the proposed transaction, Taylor and a coconspirator (whose name does not appear in the record) would steal Sylvester's money.

After meeting at a mutual acquaintance's residence, Taylor and Sylvester traveled together to Richmond, Virginia. Upon their arrival in Richmond, Taylor instructed Sylvester to meet Taylor's coconspirator in a nearby alleyway to complete the transaction. Sylvester did so, but Taylor's plan quickly went off the rails. The coconspirator, who was armed with a semiautomatic pistol, demanded Sylvester's money. Sylvester refused and resisted. The pistol discharged and Sylvester sustained a fatal gunshot wound.

The Government charged Taylor in a seven-count indictment. In relevant part, the indictment alleges Taylor conspired to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951, attempted Hobbs Act robbery in violation of 18 U.S.C. § 1951, and used a firearm in furtherance of a "crime of violence" in violation of 18 U.S.C. § 924(c). The indictment further alleges two predicate crimes of violence: the conspiracy to commit Hobbs Act robbery and the attempted Hobbs Act robbery. Taylor pled guilty to conspiracy to commit Hobbs Act robbery and use of a firearm in furtherance of a "crime of violence." The Government agreed to dismiss the remaining charges. The district court sentenced Taylor to 240 months’ incarceration for the conspiracy conviction and 120 consecutive months for the § 924(c) conviction, yielding a total sentence of 360 months.

Taylor appealed, but his appeal was dismissed based on a waiver in his plea agreement. In 2015, the district court denied Taylor's first motion to vacate his sentence under 28 U.S.C. § 2255. In 2016, we granted Taylor permission to file a second § 2255 motion in light of Johnson v. United States , 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), which substantially narrowed the definition of "violent felony" in the Armed Career Criminal Act (ACCA), and Welch v. United States , ––– U.S. ––––, 136 S. Ct. 1257, 194 L.Ed.2d 387 (2016), which held that Johnson applied retroactively to cases on collateral review.²

In this second § 2255 motion, Taylor contends that, after Johnson , attempted Hobbs Act robbery and conspiracy to commit Hobbs Act robbery no longer qualify as crimes of violence under § 924(c)(3) and so his conviction for use of a firearm in furtherance of a "crime of violence" must be vacated. During the pendency of that motion, we invalidated § 924(c)(3)(B), one of the statute's two clauses defining "crime of violence," and further held that conspiracy to commit Hobbs Act robbery does not qualify as a "crime of violence" under either clause. United States v. Simms , 914 F.3d 229, 233–34, 236 (4th Cir. 2019) (en banc). Shortly thereafter, the Supreme Court similarly invalidated § 924(c)(3)(B) as unconstitutionally vague. United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2336, 204 L.Ed.2d 757 (2019).

Notwithstanding these shifts in the legal landscape, the district court denied Taylor's second § 2255 motion. The court held that attempted Hobbs Act robbery continued to qualify as a "crime of violence" under § 924(c)(3)(A) and that Taylor's conviction for use of a firearm in furtherance of a "crime of violence" remained valid because it was predicated on attempted Hobbs Act robbery. Taylor noted this appeal, and we granted a certificate of appealability. For the reasons that follow, we now vacate Taylor's § 924(c) conviction and remand for resentencing.

II.

Under federal law, a person who uses or carries a firearm "during and in relation to any crime of violence" or who "possesses a firearm" "in furtherance of any such crime" may be convicted of both the underlying "crime of violence" and the additional crime of utilizing a firearm in connection with a "crime of violence." 18 U.S.C. § 924(c)(1)(A).

Section 924(c)(3) defines "crime of violence" as "an offense that is a felony" and:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). Courts typically refer to § 924(c)(3)(A) as the "force clause" and § 924(c)(3)(B) as the "residual clause." In view of the Supreme Court's invalidation of the residual clause as unconstitutionally vague, Davis , 139 S. Ct. at 2336, Taylor's § 924(c) conviction may stand only if attempted Hobbs Act robbery constitutes a "crime of violence" under the force clause.

To determine whether an offense constitutes a "crime of violence" under the force clause, courts must employ the "categorical" approach. Descamps v. United States , 570 U.S. 254, 258, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ; United States v. Dinkins , 928 F.3d 349, 354 (4th Cir. 2019). Pursuant to the categorical approach, a court "focuses on the elements of the prior offense rather than the conduct underlying the conviction." United States v. Cabrera-Umanzor , 728 F.3d 347, 350 (4th Cir. 2013) (citation omitted) (emphasis in original); see also Simms , 914 F.3d at 233 (observing that, under the categorical approach, our analysis "begins and ends with the offense's elements"). We must ask whether the elements of the underlying offense necessarily require "the use, attempted use, or threatened use of physical force." McNeal , 818 F.3d at 151–52 (quoting § 924(c)(3)(A) ). When the elements of an offense encompass both violent and nonviolent means of commission — that is, when the offense may be committed without the use, attempted use, or threatened use of physical force — the offense is not "categorically" a "crime of violence."

To obtain a conviction for attempted Hobbs Act robbery, the Government must prove two elements: (1) the defendant had the culpable intent to commit Hobbs Act robbery; and (2) the defendant took a substantial step toward the completion of Hobbs Act robbery that strongly corroborates the intent to commit the offense. See United States v. Engle , 676 F.3d 405, 419–20 (4th Cir. 2012).

As to the first element, the Hobbs Act penalizes a person who "in any way or degree obstructs, delays, or affects commerce ... by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section." 18 U.S.C. § 1951(a). The Hobbs Act defines "robbery" as the "unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future." 18 U.S.C. § 1951(b)(1).

With respect to the second element, a "substantial step" is a "direct act in a course of conduct planned to culminate in commission of a crime that is strongly corroborative of the defendant's criminal purpose." United States v. Dozier , 848 F.3d 180, 186 (4th Cir. 2017) (quoting Engle , 676 F.3d at 423 ). "This definition is consistent with the definition of attempt found in the Model Penal Code," which includes some nonviolent acts. United States v. Neal , 78 F.3d 901, 906 (4th Cir. 1996) ; see also Model Penal Code § 5.01(1)(c) (enumerating examples of conduct that constitute a substantial step, like "possession of materials to be employed in the commission of the crime"). While "[m]ere preparation ... does not constitute an attempt to commit a crime," a "direct, substantial act toward the commission of a crime need not be the last possible act before its...